The stage is set for a judiciary-executive face off on the National Judicial Appointments Commission (NJAC) Act as the Supreme Court on Thursday asked the Centre to show even a single instance over the last 22 years when the SC Collegium pushed for a judge candidate, whose nomination was opposed by the Centre on the ground of lacking “integrity”.
The spark was ignited by veteran lawyer Ram Jethmalani, who opposed the concept of the NJAC but submitted that the existing Collegium system also lacked transparency. “This possibly paved the way for introducing the National Judicial Appointments Commission,” he said.
“People of this country have a right to know about the vacancies in the judiciary and who are aspiring to be judges. I see only this defect that makes the system of appointment non-transparent,” said Jethmalani, who is a Member of Parliament and being a former law Minister was an integral part of the Collegium appointment process.
Meanwhile, Union law Minister Sadananda Gowda informed Parliament that the Government is committed to move ahead with the NJAC. But since the matter is sub-judice and the CJI has refused to be part of the NJAC proceedings, the proposed meeting of the NJAC will not be held for the present, he added. The Minister was responding to a query made by M Thambidurai, Deputy Speaker and AIADMK leader, on the future course of the NJAC. “I am making it clear... Our Government certainly does not intend to encroach upon the independence of judiciary,” the law Minister told the lok Sabha.
The five-judge Bench, which had so far maintained that it will not examine the merits of the NJAC vis-à-vis the existing Collegium system, said, “When a recommendation goes to the Ministry of law and Justice for consideration, they examine the integrity. Is there a singular case where the Government opposed the name on grounds of integrity and we pushed for appointmentIJ”
The Bench headed by Justice JS Khehar even refuted the charge that Collegium lacked transparency by citing the involvement of Ministry of law and Ministry of Home (based on Intelligence Bureau inputs) in the appointment process and additionally Chief Ministers and Governors in the case of High Court appointees.
The Bench, also comprising Justices J Chelameswar, Madan lokur, Kurien Joseph and Adarsh Goel, asked Attorney General Mukul Rohatgi, “In the last 22 years, how many appointments were turned down at your end.” When he agreed there were a handful of such cases, the Bench asked him to compile a list of such recommendations under three heads of cases. These were, namely, the ones emanated from High Courts, those turned down by Government at first instance, and finally, instances approved by the Collegium despite objection raised by the Government.
The Bench agreed there could always be a better system and Parliament in its wisdom can decide on a new system provided that independence of judiciary is preserved. Rohtagi, who will argue beginning Tuesday, said that times are changing and the experience in England and other countries have proved how eminent persons, having no connection with the legal field, can select judges in an independent manner.
But Jethmalani found the term “eminent persons”, two of whom are to be nominated to the six-member NJAC panel, too vague and undefined warranting a declaration to strike down the law as unconstitutional.
Advocate Prashant Bhushan held a similar view but added that the presence of the law Minister in the panel will damage independence of judiciary. In a reference to the Delhi law Minister, Bhushan said all kinds of law Ministers are there with some even possessing a fake law degree.